Tikaram Baiswade v. Smt. Sangeeta Baiswade

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR FAM No. 250 of 2016 (Arising out of order dated 16-11-2016 passed by the Additional Principal Judge, Family Court, Bilaspur in Civil Suit No. 153/2016)

1. Tikaram Baiswade S/o Late Mathura Prasad Aged About 63 Years

2. Dinesh Kumar Baiswade S/o Tikaram Baiswade Aged About 36 Years Occupation- Agriculturist, Both are R/o Behind High School Baniyapara, Ratanpur, Police Station- Ratanpur, TahsilKota, Civil & Revenue District- Bilaspur, Chhattisgarh ---- Appellants

Versus

1. Smt. Sangeeta Baiswade W/o Late Neeraj Baiswade Aged About 24 Years

2. Ku. Kabya Baiswade, D/o Late Neeraj Baiswade, aged about 1 year Next friend Smt. Sangeeta Baiswade, aged about 24 years, W/o Late Neeraj Baiswade Both are R/o Village Gidhouri, Police Station- Ratanpur, Tahsil- Kota, Civil & Revenue District- Bilaspur, Chhattisgarh ---- Respondent For Appellants Shri Ratnesh Kumar Agrawal, Advocate For Respondents Shri Y.C Sharma, Advocate Hon'ble Shri Justice Prashant Kumar Mishra Hon'ble Shri Justice Arvind Singh Chandel Judgment On Board By Prashant Kumar Mishra, J.

07/09/2017 1.

This appeal is directed against the order passed by the Family Court allowing interim maintenance of Rs.3,000/- per month in favour of the respondent No.2 Minor Kabya, presently aged about 2 years.

2.

The impugned order has been passed on the application of the respondent under Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act, 1956') on the ground that the respondent No.1's late husband Neeraj Baiswade jointly owned family property along with his father (Tikaram Baiswade) and elder brother (Dinesh Kumar Baiswade), appellants No. 1 and 2 herein, therefore, the appellants being in possession of the coparcenary or joint family property, they are liable to maintain the respondents out of the income of the said property.

3.

Shri Ratnesh Kumar Agrawal, learned counsel appearing for the appellants, would submit that a plain reading of Section 19 of the Act, 1956 would make it apparent that, prima facie, the liability of paying maintenance including interim maintenance is on the father-in-law and not on the brother-in -law, therefore, the trial Court should not have fastened the liability to make payment of interim maintenance on the appellant No.2 (brother-in-law). Shri Agrawal would submit that in a case under Section 19 of the Act, 1956 ordinarily

interim maintenance is not provided because the shares of each of the member of the joint family is yet to be determined.

4.

This Court in Mithai Lal v. Premlata Sahu and others1 has held thus in Paras 10 to 14 :

10. A close reading of the provision would manifest that a Hindu wife is entitled to claim maintenance after death of her husband from her father-in-law, provided, however, to the extent that she is unable to obtain maintenance from estate of her husband or her father or mother or from her son or daughter, if any, or his or her estate. It is also apparent that the right conferred on the daughter- in-law is not enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-inlaw has not obtained any share. In the case at hand, it is admitted position that respondent No.1 has not got any share of property from her father or her fatherin-law, i.e., the appellant. She is thus entitled to claim maintenance from her father-in-law to the extent of her husband's share in the coparcenary property.

11.

In the matter of Smt. Rani Bai v.

Yadunandan Ram and another (paragraph 4) it has been held that under the Act 1956, rights of widowed daughter-in-law to maintenace are governed by Section 19 of that Act out of the coparcenary estate of the father-inlaw or her late husband.

12. In the matter of Master Daljit Singh and others v. S. Dara Singh and others (paragraph 9) it is held that father-in-law FAM No.72 of 2016 (decided on 15-9-2016)

is liable to maintain daughter- in-law only where he has inherited any ancestral property but not from his separate or individual property. It is also held that there has to be evidence showing coparcenary property in hands of fatherin-law.

13. Again, in the matter of Animuthu v.

Gandhiammal and another similar proposition has been laid down to hold that when there is no factual obtaining of a share in the coparcenary property a widow could claim maintenance against the coparcenary property from her father-in-law. The quantum of liability of the father-in-law depends on his means to do so from any coparcenary property in his possession.

14. Law is thus fairly well settled that a widowed daughter-in-law can claim maintenance from coparcenary property available in hands of her father-in-law 5.

In view of the above settled legal position and for the fact that the present impugned order is only in respect of interim maintenance and the main petition is still pending consideration, we deem it appropriate to dispose of the present appeal with a direction that during pendency of the main petition, the interim maintenance shall be paid by the appellant No.1/Tikaram Biswade. If any amount of interim maintenance remains unpaid and falls in arrears the same shall be charged on the joint family property in possession of the appellants No.1 and 2. In other words, unpaid interim maintenance amount can be recovered from the property presently occupied by the appellants.

6.

Accordingly, the appeal stands disposed of with the aforesaid observations. However, it is directed that the Family Court shall do well to dispose of the main petition at the earliest preferably within a period of six months from today. Sd/- Sd/- Judge Judge Prashant Kumar Mishra Arvind Singh Chandel Gowri